The ECHR found a violation of the requirements of paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of paragraph 1 of Article 6 of the Convention for the Protect Сведения: 2019-12-09 13:51:16

ECHR judgment of 12 March 2019 in the case of Gudmundur Andri Astradsson v. Iceland (application No. 26374/18).

In 2018, the applicant was assisted in preparing the application. Subsequently, the application was communicated by Iceland.

In the case, an application was successfully considered regarding the appointment of judges with a clear violation of the provisions of the Icelandic legislation as a result of the improper exercise of powers by the executive authority. The case has violated the requirements of paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


Circumstances of the case


The complaint filed by the applicant as part of the criminal proceedings was dismissed by the Court of Appeal, the new judicial authority that began to function in 2018. The applicant complained to the Supreme Court of Iceland that one of the judges in the appeal court had been appointed in violation of the procedure provided for by Icelandic law. The Icelandic Supreme Court acknowledged that the appointment of a judge was made in violation of the law, but such a violation did not lead to the annulment of the decision to appoint this judge. Accordingly, in the opinion of the Supreme Court of Iceland, the trial of the applicant was fair.


QUESTIONS OF LAW


Concerning compliance with article 6, paragraph 1, of the Convention. Having regard to the general principle that the interpretation of domestic law was primarily related to the function of the courts of Iceland, the Court could not dispute their interpretation unless there was a clear violation of that law. A similar test for a violation of the law by the respondent Government should be applied in cases where, as in the applicant's situation, the responsibility for the violation was assigned to the public authority and was recognized by the Icelandic courts. In this regard, the Court must ascertain whether the Icelandic courts took into account the general principles developed in its case-law when examining the complaint that the appointment of a judge did not comply with the applicable laws of Iceland and, in particular, whether the courts have sufficiently taken into account the nature of violations, resolving the issue of whether the court in question was “established by law”.

The concept of “apparent” violation of domestic law referred to the nature and gravity of the alleged violation. In examining this issue, the Court took into account the following: did it follow from the circumstances of the case that the violation of the rules of law governing the appointment of judges was intentional or, at least, amounted to a clear neglect of the relevant legislation of Iceland.

The mere fact that a judge whose status is not recognized by law within the meaning of Article 6 § 1 of the Convention considers criminal charges was sufficient to establish a violation of this provision of the Convention in accordance with the fundamental principle of the rule of law. However, it was not necessary to separately analyze the question of whether the trial was generally unfair due to a violation of the principle of the consideration of cases by courts established by law.

The Icelandic Supreme Court found that the Minister of Justice and the country's parliament violated applicable law regarding the appointment of judges of the court of appeal. The Court should have determined whether the violations of Icelandic law as a whole were “manifest”, as a result of which the participation of the relevant judge in the applicant’s criminal case violated Article 6 § 1 of the Convention, and the appointment of that judge was not “based on law” in accordance with the indicated provision of the Convention.

Icelandic legislation specifically provided for restrictions on the powers of the executive branch regarding the appointment of judges, in particular, a requirement was introduced to assess the competency of candidates for 15 seats of judges of the newly created court of appeal, which was carried out by experts of a specially established evaluation committee appointed by the Supreme Court and the Judicial Council , Bar Association and Alting of Iceland. Legislative procedure requiring the active participation of Iceland Alting in the voting on candidates nominated for judges of the new court of appeal was a profound transformation in the judicial system of Iceland, which was aimed at protecting the important public interest, which was to ensure the independence of judges from the executive authorities. Legislative restrictions were designed to minimize the risk of inappropriate influence of political parties on the procedures by which the legislative body, Alting of Iceland, had to evaluate and finally approve the qualifications of each candidate nominated as a judge of a new court of appeal.

The Icelandic Minister of Justice removed four people from the list of 15 candidates whom the assessment committee recognized as the most qualified, replacing them with four other candidates who occupied lower places on the list. Although the Minister of Justice, in accordance with Icelandic law, was entitled to propose other candidates from among those not proposed by the evaluation committee, she did this without an independent assessment of the merits of the respective candidates and without collecting additional evidence and other materials confirming her findings. She did not perform a detailed analysis of the competence of the four candidates who ranked lower in the list compared to the 15 candidates recognized as the most qualified, as required by the general principles of administrative law and the general principle of Icelandic law, according to which, when appointing people candidates with the highest qualifications. These violations of Icelandic law were at the core of the selection process for candidates for the vacant judges of the new Court of Appeal and, accordingly, constituted a fundamental flaw with respect to the entire procedure for the appointment of four judges.

The Icelandic Supreme Court decided that the Minister of Justice acted “with complete neglect” of the danger of harming the reputation of the candidates who were replaced, and her conduct served the interests of the other four judges, whom she favored during the appointment of judges. Violations of the laws of Iceland by the Minister of Justice not only represented a fundamental flaw in the procedure for the appointment of judges in general, but also demonstrated a clear disregard for the applicable rules in force during the period relevant to the circumstances of the present case.

The inability of the members of Althing Iceland to adhere to the separate voting rules for each candidate established by domestic law constituted a serious flaw in the procedure for the appointment of judges, which affected the whole process. Only the fulfillment by the Minister of Justice of his duties stipulated by law, allowed Althing Iceland to adequately fulfill his function in this process and express his position on the actions of the Minister of Justice, which deviated from the opinion of the evaluation committee regarding the four candidates.

The procedure during which the relevant judge was appointed to the judges of the court of appeal constituted a clear violation of the applicable rules in force during the period relevant to the circumstances of the case. During this procedure, the executive authority exercised discretion, not provided for by law, on the selection of four judges of the new court of appeal, and Alting Iceland did not adhere to the laws previously introduced to ensure proper balance between the executive and legislative authorities in the appointment of judges of the court of appeal. The Icelandic Minister of Justice acted with clear disregard for the applicable rules. Thus, this procedure prejudiced the trust that the judiciary in a democratic society should inspire in society and contradicted the very essence of the principle that a court should be established on the basis of law, one of the basic principles of the rule of law.


RESOLUTION


In the case there was a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted by five votes in favor and two with “against”).


COMPENSATION


In application of Article 41 of the Convention. The Court has found that the finding of a violation of the Convention was in itself a sufficient just satisfaction for any non-pecuniary damage.

 

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